| Matter of Coopersmith |
| 2008 NY Slip Op 01340 [48 AD3d 562] |
| February 13, 2008 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Gladys Coopersmith, Deceased.Arthur Anderman et al., Respondents; Joan Lavin, Appellant. |
—[*1] Emanuel R. Gold, Forest Hills, N.Y. (Howard S. Levine of counsel), forrespondents.
In a contested probate proceeding, the objectant appeals from (1) a decree of the Surrogate'sCourt, Queens County (Nahman, S.), dated August 17, 2006, which, upon an order of the samecourt dated July 18, 2006 granting the petitioners' motion for summary judgment dismissing theobjections to probate and denying her cross motion for rulings on various matters of trialprocedure as academic, admitted the will to probate and issued letters testamentary and letters oftrusteeship to the petitioners, and (2) an order of the same court dated October 23, 2006 whichdenied her motion, in effect, for leave to reargue.
Ordered that the appeal from the order dated October 23, 2006, which denied the objectant'smotion, in effect, for leave to reargue, is dismissed, as no appeal lies from the denial of a motionfor leave to reargue; and it is further,
Ordered that the decree is affirmed; and it is further,
Ordered that one bill of costs is awarded to the petitioners, payable by the appellant.
On appeal from the decree admitting the will to probate, the objectant, in effect, seeks reviewof so much of an order dated April 7, 2006 as denied a branch of her discovery motion. As the[*2]objectant has failed to include in the appellate record any ofthe supporting or opposing papers that were submitted on the discovery motion, meaningfulappellate review of this order is not possible, and we do not reach this contention (seeCPLR 5526; Levi v Levi, 46 AD3d519 [2007]; Salem v Mott, 43AD3d 397 [2007]).
The petitioners, in support of their motion for summary judgment dismissing the objections,established, prima facie, that the will was not the product of undue influence (see Matter ofWalther, 6 NY2d 49, 55 [1959]). The petitioner Anderman, who was the attorney-draftsmanand was named as one of three executors and as one of three trustees of a charitable trust, was nota beneficiary under the will, and thus, the inference or presumption of undue influence does notapply (see Matter of Weinstock, 40 NY2d 1, 6 n [1995]; see also Matter ofThompson, 121 App Div 470, 472 [1907]; cf. Matter of Henderson, 80 NY2d 388,392 [1992]).
In opposition, the objectant failed to raise a triable issue of fact. The objectant's conclusoryand speculative allegations about Anderman's undue influence over the decedent lack support inthe record and are insufficient to raise a question of fact (see Matter of Weltz, 16 AD3d 428, 429 [2005]; Matter ofEsberg, 215 AD2d 655, 656 [1995]). Thus, the Surrogate's Court properly dismissed theobjections to the admission of the will to probate. Mastro, J.P., Fisher, Dillon and McCarthy, JJ.,concur.